Chan (Migration)

[2017] AATA 2814

Chan (Migration) [2017] AATA 2814 (20 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yiu Wai Chan

CASE NUMBER:  1517064

DIBP REFERENCE(S):  BCC2015/3188219

MEMBER:Gabrielle Cullen

DATE:20 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal confirms the decision to dismiss the application.

Statement made on 20 December 2017 at 10:28am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 570 Independent ELICOS Sector – No reasonable excuse for non-attendance

LEGISLATION
Migration Act 1958, ss 362B(1A)(b), 362C(5)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 November 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 570 visa under the Migration Act 1958 (the Act).

2. On 29 November 2017 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

4. The review applicant applied for reinstatement of the application within 14 days after receiving notice of the decision.

5. He claimed he failed to attend the hearing as he has to look after his pregnant partner, Mo Yin Lau. He submitted a medical certificate indicating her due date being 13 May 2018. He claimed as both of them have no family he needs to provide extra care to her by himself during the pregnancy. He submitted that she does not have a licence and it is very hard for her to do anything alone so he always needs to drive her to her workplace, to visit the Doctor, to do the ultra sound scans and blood tests etc. He claimed that in addition he does the homework and prepares the meals. He submitted that he does not want to leave her too far and there may be an emergency and she is 18 weeks pregnant. He submitted that he is very afraid to leave her alone in Australia and it is not good for the baby. He requested the hearing be deferred until the baby is born in May 2018.

6. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

7. The Tribunal has before it a copy of the “Invitation to Attend a Hearing” sent to the applicant by email on 17 October 2017. The Tribunal is satisfied, from the information contained on the Tribunal file that the invitation was sent by email to the email address the applicant had given the Tribunal, as at that date, for service of documentation. That letter clearly states that he is invited to appear before the Tribunal to give evidence and present arguments on 28 November 2017 at 9:00am. That letter advised of the following:

   If you are not able to attend the hearing, you need to advise me as soon as possible.

   Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

   If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

8. On the information before it the Tribunal finds that all reasonable steps were taken by the Tribunal to notify the applicant of his opportunity to appear before it to give evidence and present arguments on 27 November 2017. No request to adjourn the hearing was received prior to it.

9. The Tribunal has considered his reasons for non-attendance and does not accept his partner being 18 weeks pregnant and them having no support as a reasonable excuse for non-attendance. While the Tribunal accepts he is caring for his partner and she is pregnant and he is concerned for her, his evidence is she works as he drives her to work. As she is only 18 weeks pregnant and able to work, the Tribunal does not accept her condition is at the point where he is unable to leave her to attend a hearing or that he is required to care for her to the extent he could not attend the hearing. There is no medical evidence to suggest this. The Tribunal therefore does not accept that the applicant was unable to attend the hearing for the reasons he claims. The applicant was advised in the hearing letter that if he is not advised of an adjournment he must assume the hearing will go ahead.

10. On the information before it the Tribunal does not consider it appropriate to reinstate the application and confirms the decision to dismiss the application.

11. The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

    DECISION

12. The Tribunal confirms the decision to dismiss the application.

    Gabrielle Cullen
    Member